Whose Rights and Which Rights? The Continuing Story of Non-Refoulement under the European Convention on Human Rights

Author: den Heijer, Maarten

Source: European Journal of Migration and Law, Volume 10, Number 3, 2008 , pp. 277-314(38)

Publisher: Martinus Nijhoff Publishers, an imprint of Brill

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Abstract:

This article challenges the assumption that under the European Convention of Human Rights only Articles 2 and 3 bear relevance in cases of refoulement. By unraveling the explicit and implicit principles applied by the European Court of Human Rights and elaborating upon earlier theoretical attempts to ascertain the impact of the Soering judgment on extradition and expulsion cases, it is argued that there is no clear dichotomy of rights within the European Convention and that the higher threshold for applying Convention standards to cases of expulsion in which maltreatment is suffered in the receiving country is dependent on the notion of a 'fundamental value'. Albeit a somewhat nebulous concept, this notion is likely to encompass not only Articles 2 and 3, but also norms protected by other provisions, or at the least certain intrinsic components of those other provisions.

Keywords: EXPULSION; EXTRADITION; FUNDAMENTAL RIGHTS

Document Type: Research article

DOI: http://dx.doi.org/10.1163/157181608X338171

Affiliations: 1: PhD candidate, Institute of Immigration Law, Leiden University

Publication date: 2008-08-01